2008-01-10

As the Alberta Premier publically fights with the prank of a former Alberta Liberal party official and the story gains a little bit of steam, I thought perhaps it was time to ask a few critical questions. Now I am not a lawyer [but these days its hard to get too excited over the expertise of law students anyways -ed] but I did think to do a little bit of backgrounding on cybersquatting as it relates in Canada.

The first thing to note is that if this was in the U.S., Ed Stelmach would have already won. While cybersquatting corporate names and slogans can be passed off as fair comment, the identities of flesh and blood people certainly cannot.

To apply under it, Stelmach must meet the requirements to possess a .ca address. Since Cournoyer met them, and citizenship appears to satify it, so far so good.

The acceptable basis for complaint is as follows:

Applicable Disputes. A Registrant must submit to a Proceeding if a Complainant asserts in a Complaint submitted in compliance with the Policy and the Resolution Rules that:

(a) the Registrant’s dot-ca domain name is Confusingly Similar to a Mark in which the Complainant had Rights prior to the date of registration of the domain name and continues to have such Rights;

(b) the Registrant has no legitimate interest in the domain name as described in paragraph 3.6; and

(c) the Registrant has registered the domain name in bad faith as described in paragraph 3.7.

For the purposes of this Policy, the date of registration of a domain name is the date on which the domain name was first registered in the Registry or the predecessor registry operated by the University of British Columbia.

Now its apparently yet untested whether a person's full name is "a mark in which the complaintant has rights", but it would be very shocking for the CIRA or a court to find otherwise. It is highly questionable if Cournoyer has a "legitimate interest" in edstelmach.ca, but we shall come back to that matter. We shall immediately address Cournoyer's biggest danger: registering in bad faith.

Paragraph 3.7 reads (emphasis mine):

Registration in Bad Faith. For the purposes of paragraph 3.1(c), a Registrant will be considered to have registered a domain name in bad faith if, and only if:

(a) the Registrant registered the domain name, or acquired the Registration, primarily for the purpose of selling, renting, licensing or otherwise transferring the Registration to the Complainant, or the Complainant’s licensor or licensee of the Mark, or to a competitor of the Complainant or the licensee or licensor for valuable consideration in excess of the Registrant’s actual costs in registering the domain name, or acquiring the Registration;

(b) the Registrant registered the domain name or acquired the Registration in order to prevent the Complainant, or the Complainant’s licensor or licensee of the Mark, from registering the Mark as a domain name, provided that the Registrant, alone or in concert with one or more additional persons has engaged in a pattern of registering domain names in order to prevent persons who have Rights in Marks from registering the Marks as domain names; or

(c) the Registrant registered the domain name or acquired the Registration primarily for the purpose of disrupting the business of the Complainant, or the Complainant’s licensor or licensee of the Mark, who is a competitor of the Registrant.

I would say with a fair degree of certainty that in his role at the time of registry as Alberta Liberal Communication Director, Cournoyer is a competitor to Ed Stelmach and could be clearly construed as registering the domain in bad faith. One is tempted to apply the even easier standard of (b), since Cournoyer quite clearly registered edstelmach.ca only because Stelmach had not already done so. However, it has to be part of a pattern. Some argument including the Ontario Liberals temporary cybersquatting of a domain named after Mike Harris, and last year's case of a Michael Ignatieff campaigner being forced to cease cybersquatting against one of Harris' former staff members. As I said, easily Stelmach's biggest trump card is the "bad faith" provisions.

Cournoyer's defense might include this section on "legitimate interests":

Legitimate Interests. The Registrant has a legitimate interest in a domain name if, and only if, before the receipt by the Registrant of notice from or on behalf of the Complainant that a Complaint was submitted:

(a) the domain name was a Mark, the Registrant used the Mark in good faith and the Registrant had Rights in the Mark;

(b) the Registrant used the domain name in Canada in good faith in association with any wares, services or business and the domain name was clearly descriptive in Canada in the English or French language of: (i) the character or quality of the wares, services or business; (ii) the conditions of, or the persons employed in, production of the wares, performance of the services or operation of the business; or (iii) the place of origin of the wares, services or business;

(c) the Registrant used the domain name in Canada in good faith in association with any wares, services or business and the domain name was understood in Canada to be the generic name thereof in any language;

(d) the Registrant used the domain name in Canada in good faith in association with a non-commercial activity including, without limitation, criticism, review or news reporting;

(e) the domain name comprised the legal name of the Registrant or was a name, surname or other reference by which the Registrant was commonly identified; or

(f) the domain name was the geographical name of the location of the Registrant’s non-commercial activity or place of business.

In paragraphs 3.6 (b), (c), and (d) “use” by the Registrants includes, but is not limited to, use to identify a web site.

Cournoyer's defense would likely be (d), particularly since the redirect of edstelmach.ca to Harry Strom's Wikipedia page -- the previous redirect to Daveberta would violate this section. If Stelmach's lawyers filed before the change of redirect, this would also preclude a defense under "legitimate interests".

Finally, the section on "Onus" makes Stelmach's job a little harder, but still eminantly do-able:

4.1 Onus. To succeed in the Proceeding, the Complainant must prove, on a balance of probabilities, that:

(a) the Registrant’s dot-ca domain name is Confusingly Similar to a Mark in which the Complainant had Rights prior to the date of registration of the domain name and continues to have such Rights; and

(b) the Registrant has registered the domain name in bad faith as described in paragraph 3.7;

and the Complainant must provide some evidence that:

(c) the Registrant has no legitimate interest in the domain name as described in paragraph 3.6.

Even if the Complainant proves (a) and (b) and provides some evidence of (c), the Registrant will succeed in the Proceeding if the Registrant proves, on a balance of probabilities, that the Registrant has a legitimate interest in the domain name as described in paragraph 3.6.

The legitimate interest has to come to the forefront. Cournoyer might walk away from this unscathed. But on a first read-through, it looks like Stelmach will win this in the long haul -- at least in the courts. Of course, as this post's title implies, I don't care which of these idiotic liberals wins or loses. Banish both of them to Ontario for all I care.

Cournoyer was an employee of the Liberals when Stelmach's lawyer's letter arrived.

"He was our communications co-ordinator and was working on our web communications," Leblanc confirmed. In other words the Grits' head computer geek.

So who was he doing his blogging for?

"I won't say we sanctioned it or didn't sanction it," sniffed Leblanc, not exactly coming clean. "It's just one of the realities of Internet campaigning."

I'm left pondering the comment I made to this post of mine where I theorized about the validity of Cournoyer's complaints about "being a 24 year old bankrupt University student" -- the implication that somehow being (temporarily) financially poor while killing time for a long graft-filled career witht he Liberal Party makes any stunts or offenses unpunishable. Now there has to be an honesty aspect, along with the validity aspect, to this claim. Again, pace Waugh:

It would have been just another prank by a student from the University of Alberta's loonie-left political science department, but Dave Cournoyer isn't some obscure fat frat boy with a sticky-up haircut.

Until Dec. 31 he was the "communications co-ordinator" for the Alberta Liberal Party, the same Alberta Liberals who believe they have cornered the market in ethics and moral superiority.

Anyone who has been around politics knows what edstelmach.ca was really all about, although Liberal executive director Kieran Leblanc hotly denied it.

The note still is made: Cournoyer kept sound-biting the struggle as being "some young kid with no money versus the all-powerful ruler of the Albertan domain" when in fact this is the leader of one liberal party fighting back against questionable practises (see below) of an official with a competing liberal party. Not the stuff of glorious "David vs. Goliath" puns.

Finally, I think its time to attack another dubious claim by the Liberals and their former staffers:

This time I would like to address the first point, where the link is located. Is it really just a "simple task of registering a $14.00 domain name?"www.davecournoyer.com - English musicianwww.davecournoyer.ca - Links back to Davebertawww.daveberta.ca - Links back to Davebertawww.dave_cournoyer.com - Still availablewww.davecournoyer.ab.ca - Still availablewww.davidcournoyer.com - Still availablewww.daveberta.com - Taken by a cybersquatterwww.dave-cournoyer.com - Still availablewww.davecournoyer.org - Still availablewww.davecornoyer.com - Still availablewww.davecournoyerlib.com - Still availablewww.davecournoyerpchater.com - Still available

While you may argue that some of these are a little obscure, that's not necessarily the point. The reason that rules against cybersquatting are in place is because there are so many obscure names. I might be able to get around to registering www.faclc.com and www.faclc.ca and a few others, but the end result is still that there are lots of hyphenated or misspelled or suffixed domains that somebody can take. Dave Cournoyer took one. A website is a parking space on the web, as it were, and if the Premier's parking space wasn't switched from "Ralph Klein" to "Ed Stelmach" in time, it would hardly be considered normal for Daveberta to swoop in with a labelmaker and claim it for himself.